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Wednesday, January 2, 2013

Historical Development of ADR in Bangladesh

During the Hindu period in ancient India, Hindu
society, institutions and beliefs gradually developed and define shape was
given to them. Many important beliefs and doctrines of today are deep-rooted in
the Hindu ideology; one of those is Alternative Dispute Resolution.

In villages, the local village councils or kulani, similar to modern panchayats, consisted of a board of five
or more members to dispense justice to villagers. It was concerned with all
matter relating to endowment, irrigation, cultivatable land, punishment of
crime, etc. Village councils dealt with simple civil and criminal cases. The
head of the villagers acted both as leader of the village and the mediator with
the government[1].

In sultanate period, a Parganah was divided into a group of village. For each group of
villages there was a Panchayat, a
body of five leading men to look after the executive and judicial affair. The Sarpanch was appointed by the Nezim or the Faujdar. The Panchayat
decide civil and criminal cases of a purely local character. As a general rule,
the decision of the Panchayat was
binding upon the parties and no appeal was allowed from its decision[2].

In Mughal period, the village was the smallest
administrative unit. From ancient times the panchayat
were authorized to administer justice in all petty civil and criminal matters between
the villagers by arbitration as well as by adjudication. Important cases could
not be decided by the Panchayat which
could only chastise, impose fine and ostracise the offender. It was presided by
five Panchs elected by the villagers
who were expected to give a patient hearing to both the parties and deliver
their judgment in the Panchayet
meeting. Sarpanch was generally
president of the Panchayat. No appeal was allowed from the decision of a Panchayat[3].

The formal system of administration of justice
introduced during the British rule replaced the old system of dispensing
justice through the feudal set-up. But the traditional institutions continue to
play their role of dispute resolution though not known by their old name. After
math, arbitration and conciliation as the methods of ADR, received statutory
recognition in the Code of Civil Procedure, 1908. Having passed the arbitration
Act, 1940, arbitration provision was repeated from the Code of Civil Procedure.
But it is pertinent to say that the application of the provision this Act was
not satisfied and the courts would not follow these provisions mandatory[4].

During the Pakistan period, arbitration as one of
the important method of ADR, received statutory recognition in the Muslim
Family Ordinance, 1961. Under this ordinance, by arbitration, as a method of
ADR is mandatory to resolve the dispute as to dissolution of marriage. Union
parishad would have to follow arbitration process to resolve this dispute.

Besides the above mentioned measures adopted as the
process of ADR, Bangladesh Government has promulgated the following acts for
the effective application of ADR procedure for dispensing the dispute outside
the court: